Posted on October 16, 2021

Intentional Infliction Of Emotional Distress And Divorce In Illinois

People do horrible things to each other before, during and after a divorce. The Illinois divorce process, however, rarely addresses horrible behavior.

Illinois divorce courts “divide…marital property without regard to marital misconduct in just proportions” 750 ILCS 5/503(d)

Child support and maintenance are awarded based on the party’s income not their behavior.

Even parenting time awards will be made without considering bad behavior of a spouse upon a spouse if it does not have a clear affect on the children.

“In allocating parenting time, the court shall not consider conduct of a parent that does not affect that parent’s relationship to the child” 750 ILCS 5/602.7(c)

There’s not even financial consideration after domestic violence.

“An action for dissolution of marriage also provides no compensatory relief for domestic abuse” Feltmeier v. Feltmeier, 798 NE 2d 75 – Ill: Supreme Court 2003

If a spouse wants money because their spouse abused them. Outside of divorce, an Illinois spouse can sue their ex because of their bad behavior.

Suing A Spouse or Ex-Spouse For Intentional Infliction Of Emotional Distress In Illinois

“A married person may, in all cases, sue and be sued without joining his or her spouse as if unmarried. A husband or wife may sue the other for a tort committed during the marriage.” 750 ILCS 65/1

Specifically, a spouse or ex-spouse can sue their spouse or ex-spouse for intentional infliction of emotional distress.

Intentional infliction of emotional distress is a tort created by the courts.

A tort is “a private or civil wrong or injury for which a court will provide a remedy in the form of an action for damages” Black’s Law Dictionary (10th ed. 2014)

In order to get the tortious party to pay damages, elements have to be satisfied.

For intentional infliction of emotional distress “[f]irst, the conduct involved must be truly extreme and outrageous. Second, the actor must either intend that his conduct inflict severe emotional distress, or know that there is at least a high probability that his conduct will cause severe emotional distress. Third, the conduct must in fact cause severe emotional distress.”  McGrath v. Fahey, 126 Ill.2d 78, 127 Ill.Dec. 724, 533 N.E.2d 806 (1988)

When people aren’t married, it’s usually quite obvious when behavior is extreme, outrageous, intentional and caused severe emotional distress. In a marriage, our society seems to shrug off bad behavior between spouses with saying like “who knows what goes on behind closed doors”

“[S]pecial caution is required in dealing with actions for intentional infliction of emotional distress arising from conduct occurring within the marital setting, our examination of both the law of this state and the most commonly raised policy concerns leads us to conclude that no valid reason exists to restrict such actions or to require a heightened threshold for outrageousness in this context.” Feltmeier v. Feltmeier, 798 NE 2d 75 – Ill: Supreme Court 2003

Don’t all divorces have emotional distress caused by one or both spouses?

The Illinois Supreme Court in Feltmeier v. Feltmeier has laid out all the issues and requirements for a valid intentional infliction of emotional distress claim during and after an Illinois divorce.

The facts of Feltmeier v. Feltmeier “combines more than a decade of verbal insults and humiliations with episodes where freedom of movement was deprived and where physical injury was often inflicted. The alleged pattern of abuse, combined with its duration, worked a humiliation and loss of self-esteem. Regardless of the form in which it arrived, violence was certain to erupt, and when seasons of spousal abuse turn to years that span the course of a decade, we are unwilling to dismiss it on grounds that it is unworthy of outrage.” Feltmeier v. Feltmeier, 333 Ill.App.3d at 1176, 268 Ill.Dec. 109, 777 N.E.2d 1032.

If the behavior is outrageous, it only goes to follow that said behavior will result in emotional distress.

“[F]acts alleged in support of the outrageous character of the defendants’ conduct are sufficient to support the additional allegation that the plaintiffs suffered severe emotional distress as a result of that conduct.” Kolegas v. Heftel Broadcasting Corp., 607 NE 2d 201 – Ill: Supreme Court 1992

Emotional distress does not require a doctor, psychiatrist or therapist’s verification. “[E]xpert testimony, while it may assist the [finder of fact], is not required to support a claim for…infliction of emotional distress.” Thornton v. Garcini, 237 Ill. 2d 100, 109 (Ill. 2009)

However, not all outrageous behavior is going to qualify as having inflected emotional distress. Virtually all financial abuse qualifies as fraud and the fraud cannot have emotional damages in Illinois. “[D]amages for solely emotional harm are not recoverable in an action for fraud.” Weidner v. Karlin, 402 Ill. App. 3d 1084, 1088 (2010)

Statute of Limitations For Intentional Infliction Of Emotional Distress In Illinois

You can only sue someone for a tort within a specific window of time.

“Defendant may, within the time for pleading, file a motion for dismissal of the action [if]… the action was not commenced within the time limited by law” 735 ILCS 5/2-619(a)

“Actions for damages for an injury to the person…shall be commenced within 2 years next after the cause of action accrued” 735 ILCS 5/13-202

“[T]he applicable statute of limitations for intentional infliction of emotional distress is two years.” Pavlik v. Kornhaber, 761 NE 2d 175 – Ill: Appellate Court, 1st Dist., 2nd Div. 2001

When do you start counting the two year period statute of limitations?

A statute of “limitation period begins when facts exist which authorize one party to maintain an action against another.” Sundance Homes, Inc. v. County of DuPage, 746 NE 2d 254 – Ill: Supreme Court 2001 (Citations Omitted)

Intentional Infliction of Emotional Distress isn’t a one time violation of another person. It almost always proceeds over the course of time. When the Intentional Infliction of Emotional Distress occurs between two married people, the behavior probably occurred over the course of years.

There’s an exception for ongoing bad behavior called the “continuing violation rule.”

“Under the “continuing violation rule,” embraced by our appellate court, where a tort involves a continuing or repeated injury, the limitations period does not begin to run until the date of the last injury or the date the tortious acts cease.” Belleville Toyota v. Toyota Motor Sales, 770 NE 2d 177 – Ill: Supreme Court 2002

“A continuing tort, therefore, does not involve tolling the statute of limitations because of delayed or continuing injuries, but instead involves viewing the defendant’s conduct as a continuous whole for prescriptive purposes.” Feltmeier v. Feltmeier, 798 NE 2d 75 – Ill: Supreme Court 2003

So, anytime two years after the entry of the Judgment Of Dissolution Of Marriage will likely be too late…unless an ex-spouse is still harassing post-divorce.

Intentional Infliction Of Emotional Distress Post-Divorce In Illinois

A party to a divorce cannot use the findings in their divorce documents to prove Intentional Infliction Of Emotional Distress.

“No finding by any court under Section 401 of the Illinois Marriage and Dissolution of Marriage Act shall be admissible or be used as prima facie evidence of a tort in any civil action brought under this Act.” 750 ILCS 65/1

Furthermore, the Marital Settlement Agreement will probably include language where both parties waive any claims against each other from the past…but you can’t waive suing for future abuse.

“[A] release covering all claims that might later arise between the parties “would constitute a consent to the foregoing of legal protection for the future and would plainly be against public policy.” Chubb v. Amax Coal Co., 466 NE 2d 369 – Ill: Appellate Court, 5th Dist. 1984

Finally, not following a divorce decree cannot arise to an intentional infliction of emotional distress. “Illinois does not allow punitive and emotional distress damages for breaches of contract” Stafford v. Puro, 63 F.3d 1436, 1443 (7th Cir. 1995)

If your spouse’s or ex-spouse’s behavior was/is outrageous but the Illinois divorce court just doesn’t seem to care, perhaps a filing in civil court for Intentional Infliction Of Emotional Distress will finally cause that outrageous behavior to cease. To learn more, contact my Chicago, Illinois family law firm to speak with an experienced Chicago divorce attorney.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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